THE NEW TERM

How much of an umpire is the chief justice?

September 24, 2006|David G. Savage | DAVID G. SAVAGE covers the Supreme Court for The Times.

The case of Gonzales vs. Oregon came before the Supreme Court in Roberts' first month as chief justice, and a 6-3 majority ruled for Oregon in January. But Roberts joined Scalia's dissent, as did Justice Clarence Thomas. The three said the use of legal drugs for ending a life was not a "legitimate medical purpose" and could be banned by the attorney general.

If Roberts' side had been in the majority, it would have voided the voice of Oregon's voters, taken away the state's traditional power to regulate the practice of medicine and upheld a single federal officer's new interpretation of a long-standing federal statute that had not been endorsed by Congress.

In the other case, Roberts supported a sharp pullback in the Clean Water Act of 1972, which makes it illegal to discharge pollutants into the "navigable waters of the United States" without a permit. Because water flows downhill, the Environmental Protection Agency since the 1970s has said it has authority over all rivers, streams, channels, marshes and wetlands that may send water -- and pollutants -- to major lakes, rivers and bays.

But in Rapanos vs. U.S., Roberts joined Scalia, Thomas and Samuel Alito in calling for a new, sharp limit on the EPA's authority. Federal authority, they said, only applied to permanent and "continuous flowing" bodies of water, such as rivers and their main tributaries. This would have eliminated federal protection for most streams and wetlands in the interior of the nation and nearly all those in the West and Southwest because their stream beds are dry for part of the year.

For more than three decades, these federal regulations on wetlands and streams had stood, through Republican and Democratic administrations and through GOP- and Democratic-controlled Congresses. Yet, with one extra vote, the Roberts court would have rewritten the scope of the Clean Water Act in its first term -- not the act of a modest Supreme Court.

In this term, which opens Oct. 2, the court will take up at least two cases that will test Roberts' umpire approach to judging. One involves the federal Partial-Birth Abortion Ban Act of 2003, which makes it a crime for doctors to remove a fetus largely intact during a second-trimester abortion. Six years ago, in a 5-4 ruling, the court struck down a nearly identical state law and ruled that there was "substantial medical authority" to say this method was sometimes the safest and best method of performing a legal abortion.

But Congress held hearings and said this procedure was "never medically indicated." Most lawyers who follow the court expect the new law will be upheld on a 5-4 decision, thanks to the addition of Alito, who replaced retired Justice Sandra Day O'Connor. Such an outcome would, after all, uphold an act of Congress.

The most intriguing test may come in the area of school integration. Most conservatives, Roberts among them, say the government has no business treating people in a different way because of their race. But many school districts use racial guidelines to limit enrollment in some schools. This is the only way to maintain racial integration in cities where housing tends to be segregated, school officials say.

The justices agreed to hear challenges from white parents who say these guidelines amount to unconstitutional racial discrimination. If the high court agrees with them, it would be a big win for the principle of "colorblind" government, and it could change the rules for school systems across the nation. But it may not signal the dawn of a newly modest Supreme Court.